So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.

The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed (some paragraph breaks added):

[W]e are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression. See Turner Broad. Sys., Inc., v. F.C.C., 512 U.S. 622, 629 (1994) (explaining that a cable operator serves as a conduit for speech and is not a speaker itself). While Elane Photography does exercise some degree of control over the photographs it is hired to take, in that “it decides which pictures to take, which pictures to edit, and how to edit them[,]” this control does not transform the photographs into a message from Elane Photography….

The [New Mexico Human Rights Act] regulates Elane Photography’s conduct in its commercial business, not its speech or right to express its own views about same-sex relationships. As a result, Elane Photography’s commercial business conduct, taking photographs for hire, is not so inherently expressive as to warrant First Amendment protections. The conduct of taking wedding or ceremonial photographs, unaccompanied by outward expression of approval for same-sex ceremonies, would not express any message from Elane Photography.

Similar to Rumsfeld v. FAIR, an observer who merely sees Elane Photography photographing a same-sex commitment ceremony has no way of knowing if such conduct is an expression of Elane Photography’s approval of such ceremonies. Instead, such an observer might simply assume that Elane Photography operates a business for profit and will accept any commercially viable photography job. Without Elane Photography’s explanatory speech regarding its personal views about same-sex marriage, an observer might assume Elane Photography rejected Willock’s request for any number of reasons, including that Elane Photography was already booked, or did not want to travel…. In no context would Elane Photography’s conduct alone send a message of approval for same-sex ceremonies. Without explanatory speech, the act of photographing a same-sex ceremony does not express any opinions regarding same-sex commitments, or disseminate a personal message about such ceremonies.

Similarly, unlike the parade organizers in Hurley, here, Elane Photography is not the speaker. By taking photographs, Elane Photography does not express its own message. Rather, Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community.

Moreover, the NMHRA prohibits discriminating in services offered to the public, but it does not require Elane Photography to identify with its clients or publically showcase client photographs. Elane Photography generally retains copyright on all photographs and displays them on Elane Photography’s website, but as Willock points out, these are “discretionary business practices.” Elane Photography could choose not to retain the copyright or otherwise display the photographs for viewing. Without Elane Photography taking further actions to broadcast or disseminate the Willock photographs, Elane Photography’s conduct in accepting or refusing services does not express a message. As a result, regulating Elane Photography’s discriminatory conduct does not violate the First Amendment.

I don’t think this is right, for reasons that I discussed in my earlier posts about earlier stages of this case. It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.

No reasonable person, for instance, would perceive the drivers in Wooley v. Maynard (1978) as endorsing the motto that the state placed on their car license plate (especially before Wooley itself, when observers would assume that keeping the motto unobscured on the license plate was required by law). No-one would perceive them as “express[ing their] own message.” Yet the Court held that they had a First Amendment right not to display this expression. It follows even more strongly, I think, that people should have a First Amendment right not to create expression that they don’t wish to create, regardless of whether outsiders would perceive such creation as an endorsement of the message.

And that’s especially so given Wooley‘s description of “[t]he right to speak and the right to refrain from speaking” as being “complementary components of the broader concept of ‘individual freedom of mind.'” An individual freedom of mind should protect creators of expression from being forced to create expression they disapprove of.

Nor is it right, I think, to dismiss the photographer’s claim on the grounds that commercial photographers are supposedly mere “conduit[s]” for the expression of their clients. First, Wooley suggests that the First Amendment protects the right not to be even a conduit for others’ expression.

Second, the reason people pay lots of money to hire wedding photographers is precisely that photography, including commercial wedding photography, involves a substantial degree of artistic judgment and expression on the photographer’s part. Elane Huguenin doesn’t create the things she photographs, but she stages the scenes, chooses the angles and lighting, and decides how to best create an artistic representation that is beautiful, and that properly celebrates the event being photographed. That is why photography is protected by copyright, which protects only creative expression; and even if she surrenders the copyright, or never exploits it, she will still have engaged in the creative expression that is protected by copyright — and by the First Amendment.

To give an analogy, say that a commercial translator is operating in a state that bans public accommodation discrimination based on religion in such enterprises, and say that the Scientologists ask the translator to translate some of their press releases into a foreign language. In a sense, the translator may be something of a “conduit” for the Scientologists’ speech; he certainly isn’t supposed to be making it up himself. But effective translation requires a great deal of creative judgment, both to make the work understandable and to preserve to the extent possible the work’s rhetorical effectiveness and sometimes even aesthetic sensibility.

It seems to me that the First Amendment secures the translator’s right to refuse the commission, and to choose not to create pro-Scientology propaganda, even if the creative process simply involves translating text from one language to another (and even if the translator’s identity will never be known by third parties, and even though the translator could avoid the compulsion by giving up his livelihood). Likewise, the First Amendment secures a photographer’s right to refuse the photographer an event that she views as immoral, and to choose not to create creative expression that is meant to celebrate that event and to depict it as beautiful, even if the creative process simply involves recording (and staging) images from life into photographs.

In any event, I hope that Huguenin and her lawyers (the Alliance Defense Fund) seek review by the New Mexico Supreme Court, and, if that fails, even by the U.S. Supreme Court. I will also blog shortly about the other major issue in the case, Huguenin’s separate claim for a religious exemption from the state antidiscrimination law.